For as long as I have been blogging on gay marriage, I have faulted the great majority of those who advocate extending state definition of this ancient and honorable institution to include same-sex unions. I see all too many as all too eager to dodge a debate on this all too important topic. And see too few willing to talk about why marriage is a good thing — and why changing the institution would benefit gay men and lesbians.

Too often, I have said, gay marriage advocates focus on marriage as a right whereas most people see marriage as a social institution with certain benefits as well as certain responsibilities. It seems that all too many of these advocates don’t understand (as do Rauch and Carpenter — and a number of others) what this institution entails. Witness, for example, the comments of Bennett Klein arguing before the Connecticut Supreme Court that that state violates the constitutional rights of eight gay couples by refusing to grant them marriage licenses. He claimed that “the fundamental principles of marriage are not based on gender.”

Obviously this attorney has not spent much time the long history of marriage. Wherever there has been marriage, the institution has served to bring together individuals of differing genders. To be sure, some cultures have allowed same-sex unions, but they either called them something different than marriage or, as, when they were called marriage, as in the case of the so-called “berdache” tradition of Native American Indians, an individual had to live as a member of the opposite sex in order to marry someone of the same-sex. (In some cases, that individual didn’t have a choice in the matter.)

If Mr. Klein wants to understand those fundamental principles of marriage which he defined inaccurately before the highest court in the Nutmeg State, he should start studying the traditions of marriage from any number of cultures. As he begins his study, he will see how fundamental a role gender difference played in every culture’s understanding of the institution — even in the marriage ceremony itself. He could begin by reading the Chapter on “Betrothal and Marriage” in Arnold van Gennep’s classic work, The Rites of Passage.

That said, while marriage has long been a union between individuals of different genders, it has changed over time. And there’s no reason it can’t evolve to include same-sex unions. But, instead of making the case to state courts, as Mr. Klein, is doing, those who wish to promote this change, should be making their case to individuals who form the culture they wish to influence.

I don’t think Mr. Klein’s suit will be all that beneficial to the cause of gay marriage, especially in the state which was the first to recognize same-sex civil unions “without court pressure,” an action which I described (at the time) as “huge” and “significant.”

The elected legislatures in a number of states, including most recently in New Hampshire and Oregon have voted to recognize same-sex civil unions. There is growing state (as well as social) recognition of our relationships. But, many people (including a number favorably disposed to gays) are still unwilling to such unions marriage.

Even I have my doubts, based largely on my studies of religion, mythology, psychology and cultural anthropology. There is a difference between the genders which extends beyond biological differences, a difference which cultures and religions recognize in their rituals and legends. If we are to change the definition of marriage to include same-sex couples, then, instead of sweeping the gender distinction aspect under the rug as Mr. Klein is attempting, we need to confront it directly. We need to explain how a union between two individuals of the same gender can effect the same kind of transformation effected by a marriage between individuals of different genders.

Once again, the issue boils down to a willingness to talk about the meaning of marriage — and to promote its noble ideals, its social (and financial) benefits as well as its responsibilities in conversations both within our own community and to society at large. But, it seems alas that all too many advocates of gay marriage seem all too eager to avoid this all important conversation.

32 Comments

GPW, you’re right. Following Boswell, even at the height of medieval “gay unions”, our unions were still separate or different from heterosexual marriage, and the Church conducted them with a different ceremony (albeit one that borrowed from the heterosexual ceremony).

My memory of Boswell’s book is fading, but I don’t remember him ever citing an example of a medieval gay union that was fully equal to heterosexual in the sense of landed property transfer / inheritance, etc.

I’m as much for modern gay equality as anyone. But I believe in persuading people and their legislators, rather than railroading people through the courts. And that takes a patient presentation of rational reasons. A sales pitch, rather than a guilt pitch (or an attack on someone’s values).

Too often – Not always; but a touch too often – I get a feeling that today’s gay marriage advocates are in it for the left-wing “joy” of perverting or trashing society’s traditions.

Gay marriage will never pass in America, for the Christians in America will defeat it even if it takes a Constitutional Amendment to do so……..

This has nothing to do with equality of being able to have health insurance or recognition to make life and death decisions……….

It has all to do with the recognition that marriage is between one man and one woman.

If you really want legal recongition of your union, call it a civil union or other wording that is not offensive to Christians……..and you will find that many of the Christians will not fight this and some may even help……

It all depends on whether you are in it for the battle or to obtain your goals……..for what does the term “marriage” mean if your civil union gets you what you want……………

Stop fighting the battle over gay marriage, which you can not win, and win the war over “civil unions”………..

I’m curious as to the opinion of conservatives to the Brown vs. The Board of Education decision of the Supreme Court.

[I’m sure your intent with this is to suggest that the court does step in from time to time. But, it’s clear that by the enactment of the Fourteenth Amendment, Congress (and the states which joined in ratification as per the Constitution) intended to prevent states from discriminating on account of race. And by segregating according to race, the states violated the Constitution. There has been no amendment to the Constitution providing for a redefinition of marriage. –Dan]

texican – if the debate is a matter of symatics, then we win. period. you’re a bigot and narrow-minded if you’re not for full equality, and BZZZT, you’re wrong in that it has everything to do with rights.

you’re advocating different standards for different people; contrary to our consititution and bill of rights.

only 40% of Americans vote. How do we even know everyone eligible to vote is against gay marriage. We dont know alot about America in general because so many fail to go to the polls and make their voices heard. Me personally I could care less about being able to marry, I dont think any marriage should be recognized by the government. Why should a married couple of 2 years have more rights than a straight couple that have been together for 15 years. The only thing I care about is adoption rights. And gays should focus and worry much more about that.

Hey, rightiswrong, don’t just go throwing out the “b-word” there. I’m afraid that Texican does not strike me as a bigot in this comment (can’t vouch for any others). A bigot would come in here and call people who he doesn’t necesarily agree with by nasty names and make a jackass out of himself.

That being said, Texican, don’t group all Christians into one pigeonhole (yours) just because you think a certain way and are Christian. As a Lutheran, there is nothing that offends me about gay marriage. Quite the opposite, really.

It is the 14th Ammendment that is key here; Denial of equal protection under the law. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

[When, then, in denying marriage benefits are states depriving a person of life, liberty or property? –Dan]

simply put, same sex couples are being denied the same rights and priviliges that male/female couples enjoy. simple as that. The idea of marriage being some kind of ancient, sacred institution just doesn’t wash – marriage under the law grants special priviliges and benefits to those who are married and therefore same sex couples are being denied a right that is afforded to male/female couples.

[Where does the Constitution mention couples? And how is marriage a “right”? If it is, we already have it, since we’re free to marry, in the sense that no state will punish us if we claim we’re married; they just won’t grant us the same privileges they grant to different-sex couples. And why doesn’t this argument wash? And you’re mixing up terms, suggesting that privilges/benefits are the same thing as rights.]

Racists and segregationists gave similiar arguments for decades as to what was wrong with giving African americans and other “non-whites” equal rights.

[That’s a silly argument. No one here is denying gay people the right to participate in civil society — or to vote. Not only that, you’re ignoring the point of my post which is that we need address the issue of gender difference in the conversation on gay marriage. And the Constitution never even suggests that the law need treat the genders equally — hence why would so many have been so intent on the “Equal Rights Amendment. ]

PSUdain, don’t go grouping all us Lutherans together either. Then again, I do refer to myself as a heritic.

I’ve said before I’m for supporting civil unions, much to some peoples consternation, on both sides of the arguement. And it does need to be a legislative solution. both because what one court givith, the other taketh away, and is the leglistation passes for societal change, the populace needs to be able to react accordingly.

Kevin, I see citizens, and person in the 14th. In that sense we are all equal. indiviuals, not couples. You, and I, may marry anyone of the opposite sex, we choose.

To change the definition of marriage, or create a stucture that is equal to it, requires legislation. Whether it be so you may have a recognized relationship with your partner of choice, or I may have a harem (Heck, I can’t keep up with one, why would I want a harem?) it is a change, dare I say a deviation, from the social norm.

OT, Dan, My recolection of history is a bit fuzzy here, but wasn’t Brown v Board, primarily that seperate but equal wasn’t equal? IOW, if a girl’s school met the same standards as a public school, it would pass.

“And the Constitution never even suggests that the law need treat the genders equally — hence why would so many have been so intent on the “Equal Rights Amendment. ”

Textualy, the 14th amendment makes prescisely the same suggestions as to race as it does as to gender, none. It is in very general terms. Ergo, when Earl Warren said in the decision declaring the Virgina ban on interracial marriage unconstitutional (Loving v. Virgina), “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” before declaring it a 14th amendment violation, the same logic would apply to gay marriage.

Some say that this is a decision that should be undertaken democratically and not via the courts. While I certainly wholeheartedly support democratic embrace of civil rights, if it must be done by the courts, so be it. A clear majority in Alabama in the 60′s support segregation. When the majority oppresses a minority, it must not be allowed to continue. In time, the majority caught up with the times, and now no serious individual would think of advocating segregation.

Finally, I would add that all the arguments against gay marriage, such as they are, seem recycled verbatim from the arguments against interracial marriage. I would caution all those who still oppose gay marriage to ask themselves if they are adopting a position that one day they will have to explain embarrasedly to their grandchildren with “It was a different time then.”

I’m curious as to the opinion of conservatives to the Brown vs. The Board of Education decision of the Supreme Court.

You mean the liberal notion that black schools are inferior and that the only way black kids can get anywhere in life is with white kids by their side? What do you think? Of that, Justice Clarence Thomas said “It never ceases to amaze me that the courts are willing to assume that anything that was predominately black must be inferior”.

Essentially, Brown was probably unnecessary as trends post-war were pointing toward integration WITHOUT activist judges. BTW, if you wanted to bother, you can find blacks who didn’t like the decision or forced bussing either. There are those that didn’t like having to send their kids out of their neighborhoods to schools across town.

Of course if you’re belief, as most libs apparently do, that blacks are incapapble of anything without their help, you wouldn’t be interested in their opinion on the SC decision, right? Oh well, it made liberals feel good about themselves and therefore the results are irrelevant. Only their good intentions matter.

Schochu John, the difference between gay marriage and the issue at hand in Loving was that the Lovings had two choices (1) leave Virginia or (2) go to jail.

When the United States was created, states recognized marriage — an institution which predated. Indeed, the states (then, as colonies) recognized an institution which predated even England, was around even millennia before Germanic peoples came to the island of Britain.

Alas, that the thread has veered away from the point of the post because, once again, instead of addressing the broader point I was raising, Keving addressed only one issue with which we have dealt numerous times on the blog.

Repeatedly, I make the point that if we want gay marriage, advocates of changing the ancient institution to include same-sex unions must make their case to their American people. Instead, we get people content to say the courts should do it. I wrote this post because I believe we need to address the issue of gender difference because the institution of marriage has long been based on that difference.

Yes, many societies did allow polygamy, but even then, the man was married only to other women. (There are only a handful of cases (I can only think of one offhand) where one woman married multiple husbands.) All that goes to show is that the institution is based on gender difference.

And my critics seem reluctant to address that one. But, if they’re serious in their advocacy of gay marriage, they will dare make the case for gay marriage — and tackle the issue of gender difference.

I make the point that if we want gay marriage, advocates of changing the ancient institution to include same-sex unions must make their case to their American people.

Which is EXACTLY why they rely on the courts. Liberalism always fails at the ballot box. The only time it wins is when it’s hidden from view ie. hiding Pelosi and Reid for two weeks before the election and wrangling “Blue ball” dhimmicrats to pretend they’re conservative.

If we’re going to get into forensics here, let’s not forget that it has not always been the Fourteenth Amendment’s “due process” clause that has struck down state laws as being unconstitutional.

Take for example the fact that Lawrence v. Texas – that all-important “sodomy” law that was put into place here in Texas by DEMOCRATS – was decided as being unconstitutional under the NINTH Amendment, not the Fourteenth.

In a concurring ruling, Justice Sandra Day O’Connor (who provided the fifth vote in this 5-4 ruling overturning the Texas law) found for the plaintiffs under the Fourteenth Amendment. (In a blistering rebuttal, Justice Antonin Scalia replied that O’Connor was “opening a can of worms” with her decision. How right he was.)

However, the majority opinion found for them under the “penumbra” clause of the Ninth Amendment – the same one that was instrumental in the rulings for Griswold v. Connecticut and the libtard Holy Grail, Roe v. Wade.

The important note to underscore here is that unlike rights for blacks and other minorities, gay rights are NOT secured under the Fourteenth Amendment’s “due process” clause. Rather, it is a case that is under the “right to privacy” (which is not enumerated in the Ninth Amendment but then again, neither is abortion or same-sex marriage).

The Lawrence ruling has been thus (rightly) circumvented by states amending their constitutions by POPULAR VOTE by defining marriage as “one man, one woman.” Look at Oregon – one of the most liberal/socialist states out there. Definition of marriage passed nearly 4-1 in FAVOR of “one man, one woman.” Kind of interesting for tie-dyed, tree-hugging, dope-smoking, granola-munching libtards to tell gays what they really think about them, no?

If and when some same-sex couple sues a state because the “definition of marriage” violates their rights under due process will the issue be re-examined. Until then, the Lawrence ruling only states that “what you do in your bedroom is your business.”

Dan, I’m not sure I understand what you want commenters to do here. The authors you mentioned make strong cases for SSM. I have nothing to add to their arguments. Based on such logical considerations, our society ought to embrace SSM especially since the principal argument against SSM is based on the logical fallacy of argument from tradition. But there is still strong opposition to gay marriage within society so I can only conclude that logical well reasoned arguments for SSM are simply not going to work in convincing those who vehemently disagree with the whole concept.

You are critical of those who would use the courts to try to validate SSM. Yet, most of the progress towards legal recognition of our relationships has been as a result of court action, much of which was initiated early on by individuals. I don’t know how you would go about preventing people from attempting to use the courts or even that it’s good to do so.

In any event the tide is turning. Folks in Massachusetts are realizing there is no downside to SSM and it looks increasingly like attempts to ban SSM in that state by puiblic vote will actually fail. So too are people in other states slowly coming around to the realization that, if not a great thing, SSM may not actually harm them in any way. Furthermore, it’s clear that the younger generation is quite accepting of SSM and that bodes well for the future.

You are correct in your premise, that marriage of course has been about gender traditionally. It is based on a tradition where one gender is not allowed property ownership, voting rights, and essentially full participation in society. Thus, marriage was a welfare system to umbrella these lesser citizens:women.

Same sex unions did not desire to be called “marriage” because the implication was that it would be derogatory to one of the participants who would essentially be declaring himself a ward of the other.

But, in the here and now, same sex marriage is a natural evolvement of what opposite gender marriages have and are evolving to: the marriage of two equals.

The arguement before the court then is essentially correct, although its legecy is only maybe a decade or two old– not centuries.

Tradition is not always good. Genocide is traditional. Slavery is traditional. Societly ingrained mysogeny, and its influence in the marriage structure is traditional.

Textualy, the 14th amendment makes prescisely the same suggestions as to race as it does as to gender, none. It is in very general terms. Ergo, when Earl Warren said in the decision declaring the Virgina ban on interracial marriage unconstitutional (Loving v. Virgina), “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” before declaring it a 14th amendment violation, the same logic would apply to gay marriage.

Technically true.

However, the issue with using Loving is that the difference between races is not nearly as stark in every respect as it is between genders.

Furthermore, we have not seen the Fourteenth Amendment being used as a reason to allow polygamy, marriages between close blood relatives, and child marriage — which means, clearly, that there are limits both to “equal protection” and to Earl Warren’s poorly-chosen words stating that marriage is a “right”.

Howard Dean and the DNC are being sued for defamation and discrimination by a former employee – claiming among other things that Dean discriminates against gays and violated the “D.C. Human Rights Act”.

13: Well, there’s a response that’s patently ridiculous. Have you informed our government? According to them it’s part of the constitution. Do you use this as an excuse as to why there shouldn’t be equal protection under the law?

According to the version of the Constitution provided by the Government Printing Office, the XIV ammendment was ratified on July 9th, 1868. Would you like their phone number so you can call them and alert them to their glaring mistake?

One, the Congress that proposed and passed the Fourteenth Amendment can be called a rump, inasmuch as none of the formerly-Confederate states had either Senators or Representatives seated in it.

Two, the votes of ratification can be said to have been coerced, inasmuch as the formerly-Confederate states were prevented from being fully readmitted to the United States and having their votes in Congress restored unless they ratified it.

I never heard of this business with the 14th Amendment before. Sounds interesting. But if NDT’s explanation is correct, then the 14th Amendment is as constitutional as anything else in the constitution that hasn’t been rescinded by an amendment.

The problem is that, as far as I know, there is nothing in the Constitution that says that says that former states can be readmitted at the moment they want, or have any process for them, for that matter. The closest that it comes to it is the process for admitting new states. And like it or not, it appears that conditions can be made for (re)admittance. The only possible problem I see here is that these states were allowed to ratify amendments before they could have representation in Congress. Again, I don’t know if the Constitution forbids this, or if people played around with the circumstances so that everything was technically Constitutional. I suppose these “states” could have decided that they didn’t think it was fair and stuck to their guns if they wanted. Anyway, if I’m wrong, Congress and 38 states don’t seem to have a problem with it, principle or otherwise.

According to The Boston Globe, House Speaker Nancy Pelosi (D-Calif.) is working with state Democratic leaders in Massachusetts to kill a constructional amendment there that will finally give the citizens of the state the opportunity to vote on same-sex marriage, which was imposed by the state’s high court in 2003. Pelosi, a supporter of same- sex marriage, is apparently concerned about the impact a vote on the marriage amendment would have on the 2008 elections.